Massachusetts Ass'n of Tobacco Distributors v. State Tax Commission

• Decision Date: 29 March 1968
• Citation: 235 N.E.2d 557,354 Mass. 85
• Parties: MASSACHUSETTS ASSOCIATION OF TOBACCO DISTRIBUTORS et al. 1 v. STATE TAX COMMISSION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 557

235 N.E.2d 557

354 Mass. 85

MASSACHUSETTS ASSOCIATION OF TOBACCO DISTRIBUTORS et al.¹ v. STATE TAX COMMISSION.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 6, 1968.

Decided March 29, 1968.

Robert S. Frank, Jr., Winchester, for plaintiffs.

Paul N. Gollub, Asst. Atty. Gen., for State Tax Commission.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

WILKINS, Chief Justice.

This bill in equity seeks a declaratory decree whether the tax imposed by the Cigarette Excise Law, G.L. c. 64C, § 1 (as amended through St. 1966, c. 541, § 1), ² applies to 'little cigars.' The case is reported without decision by a judge of the Superior Court on the bill, the demurrer, the answer, and an agreement as to all the facts which meets the requirements of a case stated. Caissie v. City of Cambridge, 317 Mass. 346, 347, 58 N.E.2d 169; Members of Bakery & Confectionery Workers International Union v. Hall Baking Co., 320 Mass. 286, 290--291, 69 N.E.2d 111, 167 A.L.R. 986; Rogers v. Attorney General, 347 Mass. 126, 130--131, 196 N.E.2d 855. See Scott v. Manager State Airport, Hanscom Field, 336 Mass. 372, 373, 145 N.E.2d 706.

The plaintiff Massachusetts Association of Tobacco Distributors (Wholesalers) is an unincorporated association whose members are companies or representatives of companies which sell and distribute cigarettes, cigars, and other tobacco products to retailers in Massachusetts. It is the only association of tobacco wholesalers in the Commonwealth.

The plaintiff Associated Greater Boston Tobacco Retailers, Inc. (Retailers) is a Massachusetts corporation located in Boston. Its members are the majority of retail stores in or near Boston whose principal business is the sale at retail of cigarettes, cigars, and other tobacco products. It is the largest association of tobacco retailers in the Commonwealth.

The other plaintiffs are four Massachusetts corporations which sell cigarettes and tobacco products at wholesale throughout metropolitan Boston, and four individuals who are the four principal officers of Wholesalers and each of whom is an officer of one of the four wholesale corporations.

The excise tax imposed on the sale of cigarettes is ordinarily imposed on the wholesaler, is passed on by the wholesaler to the retailer, and by the retailer to the retail consumer.

The defendant commission comprises the defendant commissioner and the defendant associate commissioners. By law the commissioner is charged with the administration and collection of the tax and the commission with its interpretation. G.L. c. 64C, § 25 (as amended through St.1953, c. 654, § 86). The commission intends to collect and enforce the excise on 'little cigars' as cigarettes within the definition of G.L. c. 64C, § 1. This proposed action will probably decrease wholesale and retail sale of 'little cigars' in the Commonwealth.

A 'little cigar' is a roll of tobacco of the approximate dimensions of a paperwrapped cigarette, or somewhat larger, filled with tobacco of a different grade and type from paper-wrapped cigarettes, and wrapped in tobacco. There never has been a Federal tax on 'little cigars' as paper-wrapped cigarettes. Neither was there such a Massachusetts tax prior to the effective date of St.1966, c. 541, § 1, which was the first time the cigarette law contained a definition of 'cigarette.'

We do not consider the defendants' demurrer as such, as we shall rest our decision on the merits. Massachusetts Bar Ass'n v. Cronin, 351 Mass. 321, 324, 220 N.E.2d 629. See Pearson v. Mulloney, 289 Mass. 508, 510--511, 194 N.E. 458; Olszewski v. Sardynski, 316 Mass. 715, 717, 56 N.E.2d 607; Pineo v. White, 320 Mass. 687, 489, 70 N.E.2d 294.

The Commission raises a number of points to avoid our making a declaratory decree. First, it is said that remedies provided by tax laws are exclusive. See Welch v. City of Boston, 208 Mass. 326, 328, 94 N.E. 271, 35 L.R.A.,N.S., 330; Atlantic Pharmacal Co. v. Commissioner of Corporations and Taxation, 294 Mass. 485, 486--487, 2 N.E.2d 474. And it is suggested that G.L. c. 64C, §§ 7, 22, 23, and 24 are such remedies. The decisions in the Welch and Atlantic Pharmacal cases were modified by Meenes v. Goldberg, 331 Mass. 688, 690--691, 122 N.E.2d 356, where it was held that the existence of remedies under the tax law did not prevent judicial action under G.L. c. 231A, § 9, of which calls for liberal construction and administration of declaratory procedure. The case last cited was affirmed in Madden v. State Tax Commission, 333 Mass. 734, 735--736, 133 N.E.2d 252, as 'in line with present tendencies.' There has been no weakening in those tendencies. See Squantum Gardens, Inc. v. Assessors of Quincy, 335 Mass. 440, 443, 140 N.E.2d 482; Stow v. Commissioner of Corporations and Taxation, 336 Mass. 337, 339--340, 145 N.E.2d 720; Bettigole v. Assessors of Springfield, 343 Mass. 223, 235, 178 N.E.2d 10; Borchard, Declaratory Judgments (2d ed.) 825.

Second, the commission asserts that all necessary parties have not been joined in the proceedings. We recognized in Harvey Payne, Inc. v. Slate Co., 342 Mass. 368, 173 N.E.2d 285, that the commission was a necessary party under G.L. c. 231A, § 8, to a bill in equity for a declaratory decree relative to the imposition of the excise tax under G.L. c. 64C. Cf. Harvey Payne, Inc. v. Slate Co., 345 Mass. 488, 188 N.E.2d 562. Here, where the commission is a party and the plaintiffs represent the wholesalers, the retailers, and the individual consumer upon whom the tax falls, we think that there is no one who might have or claim any interest which would be affected by the declaration whose interest is not now represented. See G.L. c. 231A, § 8. That no manufacturers have been made parties, as objected to by the commission, is not fatal. No suggestion is offered wherein their position would differ as affected by our declaration. There is no requirement that everyone with interests identical to those already parties be joined. See Leonard v. Eastern Mass. Street Ry. Co., 335 Mass. 308, 314, 140 N.E.2d 187; Woods v. City of Newton, 349 Mass. 373, 379, 208 N.E.2d 508.

Third, the commission challenges the plaintiffs' standing to bring this bill. There is no merit in this contention. A salient purpose of G.L. c. 231A, as set forth in § 9, is to remove, and to afford relief from, uncertainty and insecurity in the applicability of statutes. Metropolitan Dist. Police Relief Ass'n v. Commissioner of Ins., 347 Mass. 686, 689, 200 N.E.2d 245; Commissioner of Administration v. Kelley, 350 Mass. 501, 505, 215 N.E.2d 653. The probable loss of revenue to the plaintiffs, should an excise tax be imposed on the sale of 'little cigars,' is sufficient to confer standing upon...